President Buhari Has Finally Suspended The Nigerian Constitution By: Mike Ozekhome SAN

I have read many opinions on the CJN Water Onnoghen brouhaha. I’ve shed some silent tears, laughed, winced, guffawed, all in sequence, over people’s ignorance.

We are here talking about the Nigerian criminal justice system which is accusatorial (Anglo-Saxon based) and NOT inquisitorial (French model). The latter presumes the guilt of an accused person, who must prove his innocence. The former presumes his innocence. This means his guilt be proved. The Evidence Act take it from there, by requiring the quantum of proof to be one beyond reasonable doubt. This concept has been accorded constitutional imprimatur by section 36 of the 1999 Constitution. I am therefore appalled to behold some lay-person protagonists, perhaps, because of political exigencies and personal predelictions, advocate a curious “lynch-him” treatment for Justice Onnoghen, because they donot understand the nuances, intricacies, jurisprudential and philosophical basis of law. No one has exculpated Onnoghen of any alleged infractions of the CCB code. It was lawyers who defended infamous criminals of yore, like Oyenusi, Mighty Joe, Anini, Osunbor, Ramble, et al, even when they were caught red handed in their vile criminal acts. They were sentenced to death and publicly executed. That is a lawyer’s job.

If Onnoghen is guilty,there are sure and clear laid procedures for trying and finding him guilty, outside the present messy scenario. A petition was written accusing him of certain wrong doings by a well known President Buhari apologist, Mr Dennis Aghanya. He was also PA to Buhari between 2009 and 2011, Publicity Secretary of CPC (a party founded by Buhari and others), and also one of the founders of TBO (The Buhari Organization),a group formed to advance Buhari’s quest for the presidency. Now, how did Aghanya lay his hands on Onnoghen’s personal bank details which only a bank and government security agents have access to, through the BVN? Your guess is as good as mine.

Let’s now leave out the clear sinister political motives behind the Onnoghen travails, which even the blind can see, the lame can walk, the deaf can hear, the numb can feel and the stranger can visit. This petition to CCB written on the 7th of January, was stamped “received” two days later, on the 9th,and by 11th,with unusual “automatic alacrity’ not known to our Nigerian system, charges had been filed by the same CCB on the 11th,a mere two days later. Then, arraignment was fixed for 14th January. I thank God for this 8th wonder of the world dexterity and speed. I cannot remember the same Buhari carrying out over 6 separate orders of different courts, including the sub-regional Ecowas court, obeying clear orders to release Col Sabo Dasuki and El-Zakzaky from illegal detention since 2015.The government, with unusual whimsicality, capriciosness and arbitrariness, refused to carry them out. It sat as an appellate court over extanct court orders, arguing that it did so because (God forbid), so called national security must be subjected to rule of law.

It must be borne in mind that in the undue haste to bespatter Onnoghen with the paint brush of shame odium and obloquy and thus force him out of office extra-judicially, the CCB “forgot” that under section 24 of the very CCB/CCT Act, it is only the Attorney General of the Federation that can file charges, not the CCB. But, it did it itself, wrongfully, illegally and UNCONSTITIONALLY. People here who cite the so called powers of the CCT to remove a whole CJN (God forbid Nigeria being turned into a banana Republic), easily down play the fact that under section 3(d) of the same Act, once a person admits error in filling the forms or in non complete disclosure, as the CJN did, he shall NOT BE CHARGED before the CCT. That ends the matter, as he is then advised to fully comply. This, indeed, is the strongest and greatest defence to an accused person, because the CCT was not set up to ambush public officers like a Judge errant. It was meant to make them comply.

Some people go ahead to cite the incomparable case of Justice Salami, who actually went through the whole gamut of fair hearing at the NJC furnace of fire, before the NJC made its recommendations for removal which GEJ acted upon. I was in the matter. Has the NJC recommended Onnoghen’s removal to the President? No. Some people elsewhere have pointed out that I once argue that the then CBN Governor could be suspended by President GEJ, relying on Section 11 of Interpretation Act, LFN, 2004, because he who can hire can fire, and suspend. Yes! I maintain my position as stated above. But, the scenarios are quite different here. Historical revisionism does not help here unlike in the Sanusi case, appointment and removal from office are clearly governed not by the CCB/CCT Act but by sections 291 and 292 of the 1999 Constitution. It involves participation by the three arms of government in sync with the 1748 famous doctrine of the separation of powers as propounded by the great French Philosopher, Baron de Montesque. This finds space in sections 4, 5 and 6 of the 1999 Constitution. The NJC, in either case, must recommend. The 109 member Senate, must, by 2/3 majority votes, agree and recommend. Then, the president acts. It is only then that the president can either appoint or remove. Clearly therefore, a law or procedure that seeks to circumvent these clear CONSTITUTIONAL procedures, including sections 153,158,3rd Schedule, parts 1 and 2 and Ngajiwa’s case, such as some people have urged is being done under the CCB/CCT Act, is violently unconstitutional, null and void to the extent of the inconsistency, by virtue of sections 1(1) and 1(3 ) of the 1999 Constitution. Even then, the exparte order allegedly suddenly obeyed by PMB was not directed at him. It was directed at Onnoghen to “step aside”. Has he “stepped” aside? No. so, where does PMB come in to suspend him? Onnoghen, through his lawyers, had approached the CCT,with jurisdictional preliminary objections, citing stay of any attempt to arraign Onnoghen.

The CCT imperiously (like Lois X14 of France who stood before Parliament and arrogantly declared, “l’est tat c’est moi”-I am the state),waived off four valid and extanct court orders and said he was not bound by them, on the sole ground (erroneously though; check out section 6 of the Constitution which specifically lists superior courts of record and show me were the CCT is meeting), that it is a court of equal and co-ordinate jurisdiction. So, what? Can’t it wait to allow the lawyers argue it out? By the way, those who argue that under the ACJA, proceedings cannot be stayed are damn right, but only to the extent that the trial must already have commenced. I handle these matters daily, with all due respect. Onnoghen has not even yet been arraigned at all, let alone trial beginning. What was happening is preliminary “shadow-boxing”, which the law allows. All of them-government, AGF, CCB and CCT, are unfortunately working from the answer to the question. The same CCT, when the case came up before it on 21st January, adjourned to 28th January, to enable argument taken on the issue of jurisdiction. Then, curiously, after the proceedings of 21st, but without waiting for it’s own imposed date of 28th January, it purported to have granted an ex parte order allegedly removing the CJN, based, wait for it, on an ex parte motion allegedly filed as far back as the 9th of January, even before the botched arraignment on the 14th had occurred. So, after the CCT reserved argument on jurisdiction to 28th,it suddenly remembered a hidden motion ex parte somewhere in its file, dusted it up and granted it, notwithstanding another Court of Appeal order stopping it from going ahead with the trial, and notwithstanding that the exparte motion had been overtaken by events before the CCT.

The last time I checked, the only jurisdiction possessed by a court or tribunal whose jurisdiction has been duly challenged is the jurisdiction to determine whether or not it has jurisdiction. No more. It cannot at that stage make any other or further orders. We must be careful not allow Nigeria and the judiciary to be humiliated, denigrated and finally destroyed, because of short and medium term political considerations. Posterity and our children will never forgive us. The international community is laughing at us. Those baying for Onnoghen’s blood must tarry and be circumspect. It is Onnoghen today. Who knows the next victim? Soldiers go, soldiers come, but barracks remain. We must remember the 1946 immortal words of Martin Niemoller (1892-1984),a prominent Lutheran German pastor, a great anti-Nazi critic of the 30s,public foe of Adolf Hitler and who had spent the last seven years of Nazi rule in concentration camps. He said, famously, and this is where I end my rather lengthy humble contribution: “First they came for the Socialists, and I did not speak out because I was not a Socialist. Then they came for the Communists, and I did not speak out because I was not a Communist. Then they came for the trade unionists, and I did not speak out because I was not a trade unionist. Then they came for the Jews, and I did not speak out because I was not a Jew. Then they came for me, and there was one left to speak for me”. As we ponder, digest and chew upon this, let us pray hard and remember that Nigeria currently stands on ominous tentethooks and dangerous precipice.